Download power of law and legitimacy within, if not among, nations. Sandra

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power of law and legitimacy within, if not
among, nations.
DANIEL BODANSKY
Sandra Day O’Connor College of Law
Arizona State University
Are Women Human? And Other International
Dialogues. By Catharine A. MacKinnon. Cambridge MA.: Harvard University Press, 2006.
Pp. viii, 405. Index. $24.50, £18.95, €22.10.
This collection brings together writings by
Catharine A. MacKinnon over the twenty years
between 1985 and 2006. MacKinnon, now the
Elizabeth A. Long Professor of Law at the University of Michigan Law School, has been a central
figure in feminist scholarship in law since the
1970s. Unlike many academics, MacKinnon has
always combined her writing with activism. She
is perhaps best known for her work with Andrea
Dworkin on developing municipal ordinances
in the United States that prohibited pornography
as a form of sex discrimination and provided
civil remedies against publishers of pornography.
MacKinnon’s writing also led to the recognition
of sexual harassment as a matter of sex discrimination,1 a development that has influenced the law in
many countries.
Feminist analysis in law owes a huge debt to
Catharine MacKinnon. The clarity of her vision,
her unflagging energy, and her charismatic presence have given feminist legal scholarship credibility and momentum. I recall vividly the first time
that I encountered MacKinnon’s writings in the
1980s and their illumination of the legal community that I inhabited. Her work has provided a
potent way of looking at the world through a feminist lens, and a vocabulary to formulate its injustices.
This book charts MacKinnon’s journey from
the national to the international spheres. As she
recounts in the preface, her involvement with the
Canadian Women’s Legal Education and Action
Fund in the mid-1980s to work on cases under the
1
CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979).
719
newly adopted Canadian Charter of Rights and
Freedoms prompted an interest in comparative
legal perspectives. In 1991, during the violent
breakup of Yugoslavia, MacKinnon began to work
with Bosnian women who had been raped by Serbian forces, and she brought various court cases
on their behalf seeking reparation for the violence
that they had suffered. More recently, MacKinnon has been the special adviser on gender to the
prosecutor of the International Criminal Court.
The book reflects a tumultuous period in international law and politics. Its scope stretches from
the end of the Cold War in 1989 and the revival
of the UN Security Council, through the establishment of two ad hoc international criminal tribunals (for the former Yugoslavia in 1993 and for
Rwanda in 1994), to the terrorist attacks of September 11, 2001, the entry into force of the Rome
Statute for the International Criminal Court in
2002, and the invasion of Iraq in 2003. The book
also covers major human rights innovations at
the national level, such as the introduction and
development of the 1982 Canadian Charter of
Rights and Freedoms and the 1996 South African
Constitution. Various women-specific instruments were adopted during this period. These
include the Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (entry into
force 2000), the Inter-American Convention on
the Prevention, Punishment and Eradication of
Violence Against Women (entry into force 1995),
and the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of
Women in Africa (entry into force 2005). The
scope of the book also coincides with the era of
the Nairobi (1985) and Beijing (1995) World
Conferences on Women. This period was also
one in which the feminist analysis of international
law and institutions developed, inspired in no
small measure by MacKinnon’s scholarship.
Are Women Human? contains twenty articles
and speeches grouped into four sections entitled:
“Theory and Reality,” “Struggles Within States,”
“Through the Bosnian Lens,” and “On the Cutting Edge.” In such a collection, there is inevitably
some overlap in the writing, but the extensive footnoting and the index greatly assist the reader. The
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THE AMERICAN JOURNAL OF INTERNATIONAL LAW
collection is a treasure trove for archaeologists
of feminist scholarship as it captures reactions to
some of the galvanizing events of the international
fin de siècle. Some chapters are very short (for
example, “Are Women Human?” is just two pages,
and “The Promise of CEDAW’s Optional Protocol” is four pages), and have not been significantly
updated. They provide a tantalizing snapshot of an
issue, rather than a sustained argument.
Part of the energy of the collection arises from
the chapters’ origins as speeches, written in an immediate and uncompromising language. MacKinnon’s lively, polemic writing style makes the often
complex argument accessible. She has an acute
ear for phrases that pithily capture her argument,
often relying on contrast and alliteration. The
introduction to such a collection of writings has
a special role in creating coherence among the
various pieces. Here, the introduction, “Women’s
Status, Men’s States,” identifies MacKinnon’s
agenda as investigating the international arena as
a site to promote women’s rights as an alternative
to the masculinity of national institutions. Her
influential earlier book, Toward a Feminist Theory
of the State,2 had argued that the state was a form
of institutional male authority, masquerading as a
system concerned with peace and justice. The legal
system, as the instrument of the state, in MacKinnon’s memorable image, “sees and treats women
the way men in society see and treat women.”3 The
elements of this process, according to MacKinnon, include distinguishing the regulation of public and private realms, disguising male dominance
as difference, masking coercion with consent, and
invoking morality to obscure the oppression of
women. She asks whether “the international system is a counterbalance [to the masculinity of
national legal systems]? Or is it metamale?” (p. 4).
In other words:
[D]oes the move from national to international essentially simply magnify the scale
and diversity of law’s masculinity, or does
it at the same time offer distinct dynamics,
2
CATHARINE A. MACKINNON, TOWARD A FEMTHEORY OF THE STATE (1989).
3
Catharine A. MacKinnon, Feminism, Marxism,
Method, and the State: Toward Feminist Jurisprudence, 8
SIGNS 644 (1983).
INIST
[Vol. 107
opportunities and challenges? Even as international law and institutions could challenge
or limit the power of individual states, do
they build and depend upon and support the
power of states as such at the same time? (Id.)
MacKinnon is also concerned with whether the
apparent replacement of some of the roles of states,
by forces such as multinational corporations,
organized crime, and religion, has affected international masculinities. Another framing question
is whether the emergence of women as a global
force can challenge the top-down masculinity of
the state and its surrogates from the bottom up.
MacKinnon’s answers are foreshadowed in her
formulation of the questions. She argues that
international law not only reflects the masculinity
of the states that create it but also offers the possibility of limiting state influence; that globalization may have reduced the centrality of the state
but it has done little to affect its masculinity; and
that women have indeed been effective at using the
international arena against masculine dominance.
MacKinnon identifies women as a “global group
in the sense that the distinctive social definition,
treatment, and status of women as a sex relative
to men is recognizable in diverse forms all over the
world” (p. 13). She later invokes (in paraphrase)
Virginia Woolf ’s famous lines from Three Guineas, observing that “[w]omen have no state, are no
state, seek no state” (p. 267). At the heart of women’s inequality is their sexuality and men’s sexual
violence. MacKinnon acknowledges, however,
that “solutions need to be diversely tailored with
care to many local forms of [the] system [of
women’s subordination]” (p. 13).
The idea of a global category of women, defined
above all by women’s sexual vulnerability, requires
a historical context. The practice of defining
women by their bodies dates back to the eighteenth century4 but MacKinnon tends to assume
that the category is self-evident, almost ahistorical,
perhaps because it is an important identity for
political mobilization. She offers international
lawyers many insights, such as the following:
“The particular combination of requiring state
acts for many international violations with layers
4
See JOAN WALLACH SCOTT, THE FANTASY OF
FEMINIST HISTORY 46 – 48 (2011).
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of immunity for official acts and acts of state,
added to rules favoring local resolution and disallowing extraterritorial jurisdiction and to the lack
of interstate claims, shuts women out” (p. 7). Of
course, these rules shut out many other groups as
well, as demonstrated in the recent judgment by
the International Court of Justice in Jurisdictional
Immunities of the State.5 In that case, Germany
successfully invoked jurisdictional immunity
from civil claims in Italian courts for breaches of
international humanitarian law committed during the German occupation of Italy in the Second
World War.
MacKinnon is committed to the authority of
international law, which she understands as comparable to the U.S. legal system, but on an elevated
plane. She is confident about the law’s capacity to
articulate the harms that women suffer, and she
sees, rather optimistically, international law on the
verge of recognizing sex equality as a norm of jus
cogens: “Sex equality, although subject to varying
interpretations, is nearly universally embraced as
an international norm” (pp. 9 –10). The problem
for MacKinnon is not recognition of sex equality,
but rather enforcement and commitment. A
broader approach to regulation of women’s rights
suggests, however, that law is only one element in
achieving change, and that attention also needs to
be paid to areas such as education, the economy,
and the media. This is particularly so in the international arena.
MacKinnon sees the international arena as both
“a specific problem of organized male dominance
and a world-scale opportunity for the solutions to
fit the scale of the problem” (p. 13). Her attraction
to international law appears based in part on its
marginalized status: She observes that international law and women both lack “access to legitimate force to compel adherence to its will” (id.)
and so must deal with a wider range of methods to
be effective. Nonetheless, the sensibility that runs
through this collection is that the international
system is where the action is for women. Law is a
hierarchy and the best form of law is at the top:
5
Jurisdictional Immunities of the State (Ger. v. It.:
Greece intervening) (Int’l Ct. Justice Feb. 3, 2012) at
http://www.icj-cij.org/docket/index.php?p1⫽3&p2⫽
3&case⫽143&code⫽ai&p3⫽4.
721
“Observably gendered against women’s interests,
the international system has nonetheless produced
gains for women unavailable elsewhere. In challenging men’s rule to produce these gains, women
as such have emerged as . . . a [transnational]
group in itself. . . . [T]he international is the
authentic locale for the fight for women’s rights”
(p. 12). For MacKinnon, the international level
fits the scale and the structure of the women question. The international level is propitious for
change because (among other reasons) men are
less likely to identify with men farther away from
them— distance giving men what they call objectivity, hence making them more likely to see abuse
of women for what it is.6
This is a claim based on a rather romantic view
of the international legal arena where women’s
rights remain hotly contested. MacKinnon refers
to the “explosive productivity” of the four UN
World Conferences on Women (p. 12). But these
advances are very insecure, as attested to by the
UN’s failure to organize a fifth World Conference
almost twenty years after the 1995 Fourth World
Conference in Beijing. The institutional diffidence about further global summits concerning
women rests on a fear that the language of the Beijing Declaration would be watered down through
the combined efforts of the Holy See and the
Organization of the Islamic Conference.7 Similar
politics meant that in 2012, for the first time since
its establishment in 1947, the UN Commission
on the Status of Women failed to adopt a final
statement.8
6
Catharine A. MacKinnon, Sex, Gender, and International Law, 100 ASIL PROC. 243, 248 (2006).
7
See Louise Chappell, Contesting Women’s Rights:
Charting the Emergence of a Transnational Conservative
Patriarchal Network, 20 GLOBAL SOC’Y 491 (2006).
8
UN Commission on the Status of Women, Press
Release No. WOM/1905, Head of UN Gender Entity
Expresses ‘Deep Regret’ as Commission on Status
of Women Concludes Without Adopting Agreed
Conclusions (Mar.15, 2012) at http://www.un.org/
News/Press/docs/2012/wom1905.doc.htm. See generally statements and discussions by member states and
participating groups, UN Commission on the Status
of Women, Report on the 56th Session, at http://
www.un.org/womenwatch/daw/csw/56sess.htm#media.
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THE AMERICAN JOURNAL OF INTERNATIONAL LAW
While international law carries a certain glamor
and allure, in some senses it has been a disappointing mechanism for redress of women’s rights. This
is illustrated by the mixed history of the Optional
Protocol to CEDAW. MacKinnon’s brief chapter
(written in 2004) on the Optional Protocol hailed
it as a tool that would empower women to assert
their right to equality, offering “the possibility of
reinvigorating the international human rights
framework and hope for equality to women” (p.
67). Yet as of October 2012, more than a decade
after the Optional Protocol’s entry into force,
CEDAW has adopted views in just twelve cases,9
and has conducted an investigation under Article
8 in a single case.10
MacKinnon’s elevation of the international system as the most accommodating for women’s
rights understates the critical role of national and
local systems for women. Women have a greater
chance of influencing more local systems, and rely
on them in more immediate ways than on the
international. Moreover, the main value of international human rights standards is their local
translation, which makes the politics of national
legal systems critical. MacKinnon’s keen faith in
international law emerges in her final chapter,
“Women’s September 11th: Rethinking the International Law of Conflict.” Here she draws a parallel between men’s violence against women and
the attacks of September 11, 2001. She points
out that the number of people who were killed in
the United States in the September 11 violence
(approximately 3,000) is almost the same as the
number of women who are killed by men in the
United States each year (pp. 260 – 61). The inter9
See OHCHR, CEDAW Optional Protocol, Jurisprudence, at http://www.ohchr.org/EN/HRBodies/
CEDAW/Pages/Jurisprudence.aspx. See also A.F. Bayefsky, Jurisprudence CEDAW: List of all final views, at
http://www.bayefsky.com/docs.php/area/jurisprudence/
treaty/cedaw/opt/0/node/5/type/finalview.
10
See Report on Mexico Produced by the Committee on
the Elimination of Discrimination Against Women Under
Article 8 of the Optional Protocol to the Convention, and
Reply from the Government of Mexico, UN Committee
on the Elimination of Discrimination Against Women,
32nd Sess., UN Doc. CEDAW/C/2005/OP.8/Mexico
( Jan. 27, 2005), at http://www.un.org/womenwatch/
daw/cedaw/cedaw32/ C E D A W -C-2005-OP.8MEXICO-E.pdf.
[Vol. 107
national response to each phenomenon is markedly different, however, although both can be
understood legally as violence by nonstate actors
against nonstate targets. She asks why violence
against women is not understood as comparable
to terrorism—indeed, a war on women—and
proposes that international armed intervention
should be considered as a response:
What will it take for violence against women,
this daily war, this terrorism against women
as women that goes on every day worldwide,
this everyday, group-based, systematic threat
to and crime against the peace, to receive
a response in the structure and practice of
international law anything approximate to
the level of focus and determination inspired
by the September 11th attacks?
....
Why did the condition of Afghan women,
imprisoned in their clothes and homes for
years . . . not rank with terrorism or rise on
the international agenda to the level of a
threatening conflict? . . . Why, with all the
violations of international law and repeated
Security Council resolutions, was their treatment alone not an act of war or a reason to intervene (including, yes, militarily) on any day
up to September 10, 2001? (P. 269 –270)
While MacKinnon’s contrast between the perceived extreme dangers of terrorism and the quotidian acceptance of violence against women pinpoints the double standards of states, I find her
remedy troubling. It effectively endorses armed
intervention as a method of achieving change,
despite all the evidence that such intervention is
counter-productive, tending to install even more
repressive political orders inimical to women’s
rights. Her remedy fails to recognize that male power
operates in complex ways and cannot be snuffed out
by the use of force. It also buys into a deeply gendered
understanding of dispute resolution and short-circuits a more sustained discussion about the ways to
achieve equality. Similarly disconcerting is MacKinnon’s endorsement of violence when legal mechanisms fail at the national level; for example, she
applauds a group of women in Nagpur, India, who
“reclaimed their humanity” by stabbing a rapist to
death when it became clear that he was about to be
released without charge (p. 14).
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MacKinnon is not afraid of controversy;
indeed, she accepts the strong reaction to her work
by the legal establishment as a sign that it has hit
its mark. She appears, however, stung by criticism
when it comes from feminist and progressive
scholars. MacKinnon addresses some of the feminist criticism only elliptically. For example, the
charge that international feminist movements rely
on essentialized views of women and are insufficiently sensitive to cultural differences is dismissed
in a footnote in the introduction (p. 9, n. 50),
although it is developed further in chapter 5 (see
below). Moreover, the claim that her litigation
interventions for Croatian women ended up
giving support to Croatian nationalists, who
endorsed rape against other ethnic groups, 11 is not
addressed.
MacKinnon’s passionate response to her critics
is found in chapter 5, “Postmodernism and
Human Rights.” She reduces postmodernism to
“a flag flown by a diverse congeries, motley because
lack of unity is their credo and they feel no need
to be consistent,” (p. 49) and as “the blood sport
of the academic cutting edge” (p. 62). Indeed,
her account of postmodernism verges on parody.
Postmodernists, according to MacKinnon, “pretend[] to be profound while being merely obscure
(many are fooled), slathering subjects with words”
(p. 49). Nonetheless, her rejection of postmodernism seems somewhat ambivalent. On the one
hand, she seeks to distance feminism from postmodern argument because she fears that the latter’s interest in contradiction and paradox will
dilute the political project of achieving equality
for women. On the other hand, her objections
to postmodernism seem based, at least in part, on
the attribution of ideas. For example, with respect
to the postmodernist critique of universalism,
MacKinnon writes: “Feminism in one sense
started the critique of universality as currently
practiced by showing how women are left out of
the human episteme. We took the critique of society as socially constructed to a new depth by showing how even something often thought by others
to be biological—sexuality—is social and draws
power lines” (p. 51).
The charge of essentialism—that the category
“women” is linked to a fixed set of characteristics
and fails to acknowledge differences between
women—is an easy and in some contexts meaningless critique deployed by feminists against
each other. The political force of feminism rests
precisely on identifying common experiences.
MacKinnon rejects the charge of essentialism by
arguing that her theories are developed from the
ground up, from the lives of real women, from
empirical observation rather than from a conceptual perspective. However, she neither details her
empirical method in this grassroots research, nor
does she acknowledge the considerable variations
in female/male relations in different contexts,
or that the patterns of sexual oppression and domination are complicated and shifting. Certainly,
MacKinnon has often been misrepresented by
critics as positing a type of global conspiracy by
men against women, but her own approach would
be strengthened by greater recognition of the
complexities and contradictions in the roles that
sex and gender play in ordering society, as well as
a deeper scrutiny of feminist methods.
MacKinnon’s essays have an autobiographical
flavor that imbues them with an appealing
vibrancy and passion. Acknowledging her roots in
the U.S. system, MacKinnon thanks her “clients
and colleagues from Bosnia-Herzegovina and
Croatia, who gave me the world” (p. viii). But this
self-image of a traveller from the national to the
international arenas generates an overly optimistic
view of the law’s capacity to redress harms. Thus,
the decision by the U.S. Court of Appeals for the
Second Circuit in Kadic v. Karadzic,12 litigation
on which MacKinnon was co-counsel for the
plaintiff-appellants, is presented as a “signal victory” (p. 7) for women worldwide. The decision
held that the Alien Tort Statute13 allowed Bosnian
women to use U.S. courts to declare the actions
of Radovan Karadžić, leader of the Bosnian Serbs,
illegal and to award extensive damages against
him. MacKinnon correctly interprets the holding
11
Vesna Kesic, Response to Catharine MacKinnon’s
Article ‘Turning Rape into Pornography: Postmodern
Genocide,’ 5 HASTINGS WOMEN’S L.J. 267 (1994).
12
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert.
denied, 518 U.S. 1005 (1996).
13
28 U.S.C. §1350 (2012).
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THE AMERICAN JOURNAL OF INTERNATIONAL LAW
as increasing the jurisdictional frontier for crimes
against women, but it was a mixed victory, less successful in practical terms. The decision did not, for
example, constrain Karadžić’s actions, or deliver
actual financial redress for his victims due to the
obstacles to collecting on the damage award.
MacKinnon’s insistence on foregrounding sexual politics is a valuable counterweight to the vacillation about women’s lives common in international fora, where women’s equality is often
regarded as a negotiable value. This book serves as
an introduction to her powerful voice, and I recommend it as an important record of her engagement in many landmark developments in the
recognition of women’s rights. It manifests, however, the perhaps inevitable tensions resulting
from multiple goals: political project, mobilization for women’s rights, and scholarly analysis.
The book’s argument rests on a number of fixed
dichotomized categories (such as women/men,
international/national) and pays insufficient
attention to the conflicts, contradictions, and slippages the categories involve. We still need a deeper
analysis of questions such as the relationship
between local and international spheres, the way
that the categories of “men” and “women” are
constructed in international law, and the operation of sex and gender in this arena.
Are Women Human? offers answers, when perhaps what we need are better questions, including
how law produces the subjects it regulates. The
political struggles of feminism encourage the divination of a single cause of women’s inequality
with men. It is more difficult to theorize the nonlinear nature of the feminist project—the ways in
which it moves forward and slips backwards—and
the insecurity of advances, as well as the ways in
which feminist vocabularies can be deployed to
preserve the status quo.
HILARY CHARLESWORTH
Australian National University
Reimagining Child Soldiers in International Law and
Policy. By Mark A. Drumbl. Oxford, New York:
Oxford University Press, 2012. Pp. xii, 239.
Index. $110, £55, cloth; $35, £17.99, paper.
Renewed interest in child combatants coincided with the revival of international criminal
[Vol. 107
justice. Over the last two decades, images of rifletoting girls and boys became emblems of civil wars
in places as far apart as Sri Lanka and Sierra Leone.
A report by United Nations expert Graça Machel
attributed the apparent increase in so-called
“small-soldiers” not only to the chaos that accompanies internal armed conflict, but also to technology that enables mass production of lethal weapons light enough for children to carry.1 Stories
of such children entered popular culture through
memoirs, novels, and movies.2 At meetings in
Cape Town and Paris, nongovernmental and
intergovernmental organizations adopted principles aimed to protect everyone under the age of
eighteen who is associated with armed forces or
groups.3 States responded, adopting two treaties
that outlawed the compulsory recruitment and use
in hostilities of persons in that same age group.4
States additionally conferred international criminal jurisdiction over the use and recruitment, forcible and otherwise, of children younger than fifteen; as a consequence, a number of commanders
1
Impact of Armed Conflict on Children: Report of
the expert of the Secretary-General, Ms. Graça Machel,
UN Doc. A/51/306 (Aug. 26, 1996) [hereinafter
Machel report], paras. 27, 34, 42– 43; see AHMADOU
KOUROUMA, ALLAH N’EST PAS OBLIGÉ 45 (2000)
(referring to “small-soldiers”).
2
Memoirs include ISHMAEL BEAH, A LONG WAY
GONE: MEMOIRS OF A BOY SOLDIER (2007), and
CHINA KEITETSI, CHILD SOLDIER: FIGHTING FOR MY
LIFE (2005); novels, KOUROUMA, supra note 1, and
UZODINMA IWEALA, BEASTS OF NO NATION (2005);
movies, Blood Diamond (2006) and War Witch (2012).
3
UNICEF, CAPE TOWN PRINCIPLES AND BEST
PRACTICES (Apr. 27–30, 1997), at http://www.unicef.
org/emerg/files/Cape_Town_Principles%281%29.pdf;
UNICEF, The Paris Principles: Principles and Guidelines
on Children Associated with Armed Forces or Armed
Groups (Feb. 2007) [hereinafter Paris Principles], at
http://www.unicef.org/emerg/files/ParisPrinciples
310107English.pdf.
4
Optional Protocol to the Convention on the Rights
of the Child on the Involvement of Children in Armed
Conflict, Arts. 2– 4, May 25, 2000, S. TREATY DOC.
No. 106-37, at 32, 33; ILO Convention Concerning
the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. 182),
Arts. 1–3, June 17, 1999, 38 ILM 1207 (1999). As of
this writing, these treaties had 152 and 177 states parties, respectively. The United States is a party to both.